1. In order to evaluate whether the certification of a juvenile to be tried as an adult was
proper, the appellate court must determine whether the decision as a whole was
supported by substantial competent evidence.

2. Substantial evidence possesses both relevance and substance and furnishes a substantial
basis of fact from which the issues can reasonably be resolved. Stated in another way,
substantial evidence is such legal and relevant evidence as a reasonable person might
accept as being sufficient to support a conclusion.

3. K.S.A. 1999 Supp. 38-1636(e) states the eight factors a district court must consider in
deciding a motion to prosecute a juvenile as an adult: (1) The seriousness of the alleged
offense and whether the protection of the community requires prosecution as an adult
or designating the proceeding as an extended jurisdiction juvenile prosecution; (2)
whether the alleged offense was committed in an aggressive, violent, premeditated or
willful manner; (3) whether the offense was against a person or against property; (4) the
number of alleged offenses unadjudicated and pending against the respondent; (5) the
previous history of the respondent, including whether the respondent had been
adjudicated a juvenile offender under this code and any other previous history of
antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of
the respondent as determined by consideration of the respondent's home, environment,
emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there
are facilities or programs available to the court which are likely to rehabilitate the
respondent prior to the expiration of the court's jurisdiction under this code; and (8)
whether the interests of the respondent or of the community would be better served by
criminal prosecution or extended jurisdiction juvenile prosecution.

4. A juvenile may stipulate to the State's allegations in a motion to certify the juvenile for
prosecution as an adult, and, provided the allegations and/or the factual basis reviewed
at the motion hearing constitute a "rough approximation" of the eight mandatory
considerations listed in K.S.A. 38-1636(e), the certification will not be overturned on
appeal.

5. The question of whether a criminal defendant voluntarily waived his or her right to a
jury trial is a question of fact, and, on appeal, we review the record to determine whether
substantial competent evidence supported the district court's finding.

6. The right to trial by jury is constitutionally preserved, and waiver of the right should be
strictly construed to afford a defendant every possible opportunity to receive a fair and
impartial trial by jury. A jury trial may be waived in any criminal trial where the
defendant, the State, and the trial court assent to such waiver. The test for determining
the validity of a waiver of the right to a jury trial is whether the waiver was voluntarily
made by a defendant who knew and understood what he or she was doing. Whether this
test is satisfied in any given case will depend on the particular facts and circumstances of
that case, but a waiver of the right to a jury trial will not be presumed from a silent
record. The court should not accept a waiver unless the defendant, after being advised
by the court of his or her right to trial by jury, personally waives the right, either in
writing or in open court for the record.

7. When the transcript of the jury trial waiver demonstrates a criminal defendant's
awareness of the right and his or her emphasis that waiver is the desired choice,
substantial competent evidence supports the voluntariness of the waiver.

BEIER, J.: Enrique L. Luna appeals his convictions of two counts of aggravated
assault
arising out of a drive-by shooting. He contends that the juvenile court erred in determining he
should be tried as an adult and that his later waiver of his right to a jury trial was
involuntary.

Luna, who was 17 at the time of the crime, was originally charged in juvenile court with
one count of criminal discharge of a firearm at an occupied vehicle and two counts of aggravated
assault. His criminal history worksheet indicated he had nine prior juvenile convictions,
including assault.

The State filed a motion to have Luna prosecuted as an adult. The allegations in the
motion read as follows:

"1. That the Respondent, Enrique Luna, was 16 or more years of age at the
time of the offenses alleged in the complaint.

"2. That one of the alleged offenses, Criminal Discharge of a Firearm at an
Occupied Vehicle, pursuant to K.S.A. 21-4219(b), is severity level 7, person
felony and the offenses, Aggravated Assault, pursuant to K.S.A. 21-3410 is a
severity level 7, person felony.

"3. That the alleged offenses were committed in an aggressive, violent,
premeditated, or willful manner.

"4. That the alleged offenses were committed against a person and not
property.

"5. That K.S.A. 38-1636(e)(3) requires the Court to give greater weight to
offenses against persons in determining whether or not prosecution as an adult
should be authorized.

"6. That the Respondent has an extensive previous history of prior
adjudications and antisocial behavior which have not been resolved through the
juvenile court process, despite intervention through probation, community
corrections, and juvenile correctional facility placements.

"7. That the sophistication and maturity of the Respondent merits his
treatment as an adult.

"8. That because of the Respondent's age and lengthy history of previous
attempts by the juvenile system to rehabilitate the Respondent through
probation, community corrections, and youth center placements, insufficient
facilities or programs are available to the Court which are likely to rehabilitate
the Respondent prior to the expiration of the Court's jurisdiction under
Chapter 38 of K.S.A.

"9. That the interests of the community would be better served by a
criminal prosecution."

No record was taken of the hearing on the motion; however, the journal entry indicates Luna
stipulated to the State's allegations. The court dismissed the juvenile proceedings, and the charges
were brought in district court.

Luna later appeared in district court with counsel and waived his right to a jury trial. The
record reflects the following exchange at the time of the waiver:

"THE COURT: [T]he defendant is here in person and is being represented by
Kerry Granger. Mr. Luna, the, this case was set, or is set, right, for a jury trial
tomorrow morning at 9:00 o'clock in this courtroom. And it is my
understanding that from having spoken to your attorney a few minutes ago that
you want to waive your right to trial by jury?

"THE DEFENDANT: Yes, sir.

"THE COURT: Okay. Is anyone pressuring you, promising you anything, or
threatening you with anything to get you to waive that?

"THE DEFENDANT: No, sir, by my choice.

"THE COURT: It is your choice?

"THE DEFENDANT: Yeah.

"THE COURT: Okay. I am going to allow you to waive the trial by jury. The
jury will be called off tomorrow, at least for your case. And we will set it down
for a bench trial, and you have to keep in touch with Mr. Granger because he
will know when the court date is."

After a bench trial, Luna was convicted of two counts of aggravated assault.

Certification for Trial as an Adult

In order to evaluate whether the certification of a juvenile to be tried as an adult was
proper, we must determine whether the decision as a whole was supported by substantial
competent evidence. State v. Smith, 268 Kan. 222, 244, 993 P.2d 1213 (1999).
Substantial evidence
possesses "'both relevance and substance'" and "'furnishes a substantial basis of fact from which
the issues can reasonably be resolved. Stated in another way, "substantial evidence" is such legal
and relevant evidence as a reasonable person might accept as being sufficient to support a
conclusion.'" In re Estate of Reynolds, 266 Kan. 449, 461, 970 P.2d 537 (1998)
(quoting Tucker v.
Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 [1993]).

K.S.A. 1999 Supp. 38-1636(e) states the eight factors a district court must consider in
deciding a motion to prosecute a juvenile as an adult:

"(1) The seriousness of the alleged offense and whether the protection
of the community requires prosecution as an adult or designating the proceeding
as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense
was committed in an aggressive, violent, premeditated or willful manner; (3)
whether the offense was against a person or against property. Greater weight
shall be given to offenses against persons, especially if personal injury resulted;
(4) the number of alleged offenses unadjudicated and pending against the
respondent; (5) the previous history of the respondent, including whether the
respondent had been adjudicated a juvenile offender under this code and, if so,
whether the offenses were against persons or property, and any other previous
history of antisocial behavior or patterns of physical violence; (6) the
sophistication or maturity of the respondent as determined by consideration of
the respondent's home, environment, emotional attitude, pattern of living or
desire to be treated as an adult; (7) whether there are facilities or programs
available to the court which are likely to rehabilitate the respondent prior to the
expiration of the court's jurisdiction under this code; and (8) whether the
interests of the respondent or of the community would be better served by
criminal prosecution or extended jurisdiction juvenile prosecution."

Luna argues that the juvenile court erred in determining he should be prosecuted as an
adult because it failed to consider all of the statutory factors under K.S.A. 1999 Supp. 38-1636(e)
in addition to his stipulation to the allegations in the State's motion for authorization for
prosecution as an adult.

Luna relies primarily on Smith, 268 Kan. 222. In Smith, the
State's motion for adult
prosecution failed to track the statutory factors, alleging only that the juvenile was 16 years or
older at the time of the offense and that he was not a fit and proper subject to be dealt with under
the Juvenile Code. Thus, on appeal, our Supreme Court held that the juvenile's stipulation to
the State's allegations in its motion could not substitute for the juvenile judge's explicit
consideration of all of the K.S.A. 38-1636(e) factors. 268 Kan. at 246.

The facts of this case are more analogous to those before us in State v. Randolph,
19 Kan.
App. 2d 730, 876 P.2d 177, rev. denied 255 Kan. 1006 (1994), which was discussed
in Smith.
Randolph also involved a juvenile's stipulation to the allegations in the State's motion
for adult
prosecution. In addition, at the hearing, the court asked the prosecutor to explain the factual
basis for the motion and received the following response:

"(1) Randolph was under 18 years of age, (2) he is alleged to be a juvenile
offender based on a violation of K.S.A. 21-3301 and 21-3427, attempted
aggravated robbery, (3) he is over 16 years old but younger than 18 years old, (4)
'such offenses would be felonies if committed by an adult,' and (5) Randolph's
record, the serious, violent nature of this offense, Randolph's lack of
amenability to programs available in juvenile court, and the safety of the
community all compelled Randolph's prosecution as an adult." 19 Kan. App.
2d at 731.

Based on this recitation and the stipulation, the juvenile court granted the motion.
We affirmed
that result, observing that the recorded response and the stipulation constituted a "rough
approximation" of the K.S.A. 38-1636(e) factors to be considered by the juvenile court. 19 Kan.
App. 2d at 737-38.

As in Randolph, the juvenile judge considering Luna's case had before
him a "rough
approximation" of the K.S.A. 38-1636(e) factors to be considered. We hold that a juvenile may
stipulate to the State's allegations in a motion to certify the juvenile for prosecution as an adult,
and, provided the allegations and/or the factual basis reviewed at the motion hearing constitute
a "rough approximation" of the eight mandatory considerations listed in K.S.A. 38-1636(e), the
certification will not be overturned on appeal.

Moreover, despite the absence of a transcript of the motion hearing, we can now say with
confidence that there was substantial evidence to support the decision to waive jurisdiction.
Luna was accused of firing a gun into a car containing two people, a serious offense; it was a
person felony, done in a violent, aggressive, and willful manner. Luna had nine previous juvenile
convictions, including unlawful use of a weapon and assault. His last progress report from a
juvenile correctional facility had indicated that he had matured since his previous stays, but that
he obviously was not rehabilitated. Given the apparent lack of success of various juvenile
placements, it was in the best interest of the community to prosecute him as an adult.

Luna argues the record does not demonstrate a knowing, voluntary, and intelligent waiver
of his right to a jury trial under State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225
(1975), because
the district court judge did not personally convey to him that he had a constitutional and
statutory right to a jury trial or the significance of waiving those rights. In addition, he contends
the judge should have informed him of his right to a jury of twelve citizens, whose verdict would
have to be unanimous and reached on a finding beyond a reasonable doubt.

In Irving, the Kansas Supreme Court discussed the test for determining the
validity of jury
trial waiver:

"Since the right to trial by jury is constitutionally preserved, waiver of the right
should be strictly construed to afford a defendant every possible opportunity to
receive a fair and impartial trial by jury. It is provided by statute in this state
that a jury trial may be waived in any criminal trial where the defendant, the
state, and the trial court assent to such waiver. (K.S.A. 22-3403 [1], 22-3404 [1].)
We have stated the test for determining the validity of a waiver of the right to
a jury trial is whether the waiver was voluntarily made by a defendant who
knew and understood what he was doing. (State v. Blanton, 203 Kan. 81, 453
P.2d 30.) Whether this test is satisfied in any given case will depend on the
particular facts and circumstances of that case, but a waiver of the right to a jury
trial will not be presumed from a silent record." [Citations omitted.] 216 Kan.
at 589.

The court went on to state: "'The court should not accept a waiver unless the defendant, after
being advised by the court of his right to trial by jury, personally waives his right to trial by jury,
either in writing or in open court for the record.'" 216 Kan. at 590.

In Stuber,this court recently upheld a waiver of the right to a jury
trial when the record
reflected this brief exchange:

"'THE COURT: Your attorney indicates that you're willing to waive
your
right to a jury trial in this case. What that means is that if this case goes to trial,
it will be tried before a judge and you will be giving up your right to have this
case tried before a jury of 12 persons; is that what you wish to do?

This court found substantial competent evidence supported a finding that Stuber's
waiver was
voluntary because the trial court told him the rights he was waiving by having a bench trial, and
Stuber orally indicated on the record he wanted to waive his right to a jury trial. 27 Kan. App.
2d at 165.

Although the exchange in this case was brief, the transcript demonstrates
that Luna was
aware he had a right to a jury trial and that he emphasized the decision to waive it was his choice.
Although we would have preferred to see a more expansive explanation of the jury trial right
from the court, it appears the judge met the minimum standard set by Irving and
Stuber.Substantial competent evidence supports the finding of a voluntary waiver.